Is tobacco control playing Br’er Rabbit in the Aussie briar patch?

by Carl V. Phillips

Those who follow tobacco policy will know that the latest upping of the ante in anti-tobacco regulations is Australia, trying to go one further in its extremism than Canada (though they cannot compete with south Asian countries that lack the rule of law). They are on the verge of requiring that cigarettes be sold in plain olive drab packages with nothing on them but the plain-text product name (and, of course, offensive pseudo-warning graphics). The rhetoric is that the plain packaging initiative will reduce smoking and that this is the next step that tobacco control wants to bring to the world. But what if that is really not true? What if those who pull the strings behind tobacco control are really trying to lose this one?

There has been much criticism about how this initiative will do nothing to reduce smoking, as any moderately knowledgeable analyst must surely realize, and represents tobacco control going too far. But this is pretty much true for all of tobacco control’s new initiatives in countries whose policies they already dominate. There simply is nothing useful left to do other than, of course, pursuing harm reduction. Whether it is banning smoking in movies or in public parks, the proposed new regulations have no realistic prospect of affecting use prevalence. Indeed, the primary effects of new initiatives are quite negative for the anti-tobacco extremists: They increase the appeal of low-risk nicotine products, and cause casual observers to start to recognize that tobacco control people have long-since ceased to be public health advocates and are now effectively religious zealots. The former of these is actually a bigger threat, because once a society discovers and understands the benefits of THR and low-risk nicotine, tobacco control will (a) lose any chance of forcing complete abstinence, because people will recognize there is no justification for that, and (b) lose their gravy train.

So, what has sustained tobacco control up to this point? They have managed to trick people into thinking that they, by far the richest and most dominant faction in discourse about tobacco, are scrappy underdogs desperately trying to get their voices heard, and that they are not failing in their promises because people like to use tobacco, but because of some powerful boogiemen. That fiction becomes rather difficult to sustain when they win every battle get everything they demand, though. And the fiction they are really doing something beneficial is hard to sustain when they get everything they demand and it turns out to accomplish nothing. But what really keeps the sympathy, faith, and money flowing is losing.

Enter plain packaging.

Plain packaging takes away trademark rights and brand equity. Honest observers realize that this will not diminish the appeal of cigarettes as a category, and will probably facilitate increased sales of cheaper and possibly unhealthier black market products. But the dominant cigarette companies in the Australian market, particularly BAT, know that the threat to their individual profits is substantial because they depend on brand equity and the legal market. This is particularly true if the arms race among anti-tobacco countries causes others to adopt plain packaging. They also know that international treaties that are far more respected and important than the FCTC protect their trademarks (see here for a discussion). They stand a good chance of getting this overturned. Did tobacco control not realize this, or is it that they were they always playing Br’er Rabbit (who begged to not be thrown in the briar patch, the one place he knew he could escape from): “You evil tobacco companies better not throw us in the briar patch or mount a legal challenge against our lily white public health initiatives!”

If the plain packaging were implemented without incident and the inevitable increase in black market sales and lack of decrease in use prevalence occurred, it would be one more step into the cul-de-sac of irrelevance for tobacco control. Oh, but if the industry can be tempted into fighting this, and better still if they win, jackpot! “Big tobacco wins again!” “Important public health measure prohibited on a technicality.” “We would have eliminated smoking in Australia with this, but Big Tobacco just has too much influence.” That is good for at least five more years of full employment for anti-tobacco extremists.

No doubt that many of the advocates and pundits involved in this really believe in the initiative. I think it is safe to say that most people working on tobacco control are idealists who are no more aware they are being manipulated than are Tea Party members aware that they are doing the bidding of the Koch brothers. Perhaps even Simon Chapman in all his cluelesslunacy actually believes what he is saying. But it is difficult to not wonder if there are some smart people behind the scenes who have been running this as a long con from the start. Anti-tobacco did not get wealthy and powerful by being as dumb as their propaganda is, after all. It certainly seems like everyone is following a long con script perfectly.

I suppose that it is possible that no one was really playing a game from the start. We will never know, however, because no doubt that one of these schemers will claim in their memoirs that it was their plan all along, whether or not it was.

Underestimating your opponents is never a good strategy. Yes, many of them are those frothy types. Most of them are clueless sheep who have no idea what deplorable behavior they are being tricked into supporting. But a few of them are responsible for creating a multi-billion dollar industry and perpetuating some of the more effective lies of the information age. They might have been lucky, but I cannot help but think that this particular subset is indeed calm and rational.

The U.S. Chamber of Commerce, the National Association of Manufacturers, the United States Council for International Business, the National Foreign Trade Council, the Emergency Committee for American Trade, the US-ASEAN Business Council and the TransAtlantic Business Dialogue today issued a joint statement regarding a proposal being considered by the Australian Government to mandate standardized plain packaging for all tobacco products.

The business groups stated, “We recognize the right of the Australian Government to implement regulation to control tobacco products. However, plain packaging risks establishing a precedent of IP destruction for an entire industry through government mandate that would be very damaging to the legitimate interests of trademark owners to associate their brands with their products, a fundamental protection under trademark law.”

They also pointed out, “Furthermore, protecting intellectual property rights and advancing public health are mutually reinforcing. Australia has always been willing to stand up for trade rules, and we have stood up with it to advance the global trading system. We are strongly convinced that the plain/generic packaging proposal will have a detrimental effect on the integrity of the protection of intellectual property around the world, while its potential effects on public health are not encouraging either. The effects of enacting an obvious violation of those rules such as plain packaging should concern the Australian Government enough to seek alternative approaches consistent with its international trade obligations.”

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Role and History of this blog

This blog was created by Prof. Carl V Phillips's TobaccoHarmReduction.org research and education group at the University of Alberta School of Public Health. The earlier posts were the work product of that group. Subsequent to THRo leaving the UASPH, this blog continued as an independent project with no institutional affiliation. All content represents only the views of the individual author.
TobaccoHarmReduction.org and Phillips became part of CASAA in 2012. Phillips has remained an occasional contributor to this blog, but those contributions are one-off personal comments; he no longer has any editorial influence over other contributors. This blog has never been affiliated with CASAA.

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